Universities Scotland

Race Equality Toolkit

Learning and Teaching

Appendix 1

The Race Relations (Amendment) Act 2000

The Equality Act 2010 received royal assent in April 2010. The timeline for the different parts of the Act to be brought into force is currently proposed as follows:

The part of the site will be updated as the Equality Act 2010 comes into force and relevant Codes of Practice are developed.

Until parts of the Act come into force, the current Race Relations (Amendment) Act 2000 remains in force.

1The general duty

The Race Relations (Amendment) Act 2000 places a duty on public authorities such as universities and colleges when carrying out their functions to have “due regard” to the need to

The duty is obligatory, not optional, and universities and colleges have to meet the duty even if they have very few students from minority ethnic backgrounds.

This duty must be applied to all functions within the institution that are “relevant” to race equality. The weight given to a function should be in proportion to its relevance to race equality. A function of learning and teaching is the transference of knowledge. So when we apply the concept of proportionality, there will be some courses where race equality issues will be of more relevance than in others. For example, a lecturer on early years education would need to include matters related to race as part of the curriculum as well as in the ethos of the classroom, while a lecturer on the behaviour of copper atoms in steels would focus on the ethos rather than content.

The three parts of the duty complement each other. Universities and colleges are expected try to find ways of meeting all three and to be able to evidence their progress in this area.

For example, if a university takes racial bullying and harassment seriously and ensures excellent reporting mechanisms but does little or nothing to promote good relations between people from different racial groups in the university, then it will only have fulfilled the requirements of the general duty in part. Similarly, if a university is sensitive to diverse cultural, linguistic and faith requirements among students but does not examine institutional practice in areas like recruitment and selection or staff development with race equality in mind, it will only have fulfilled the requirements of the general duty in part.

The aim of the general duty is to ensure that race equality is mainstreamed into all aspects of university functions and into services offered. This can be achieved by ensuring that account is taken of race equality in development planning, policy making, learning and teaching, quality assurance, employment practice and so on.

The Scottish Funding Council has also issued a circular offering guidance to colleges and universities on implementing equality legislation. There is a specific section on learning and teaching which highlights the importance of ensuring that policies and practices on teaching, learning and assessment promote equality and eliminate discrimination.

2Specific duties

Specific duties have also been imposed on universities and colleges to help them meet the general duty. Universities are required to:

  1. Prepare a written statement of their policy for promoting race equality;
  2. Have in place arrangements for fulfilling, as soon as is reasonably practicable, their duties under points 5 and 6 (below);
  3. Maintain a copy of the statement;
  4. Fulfil those duties in accordance with such arrangements (see point 2 above);
  5. Assess the impact of their policies, including their Race Equality Policy, on students and staff of different racial groups including, in particular, the impact on attainment levels of such students and staff;
  6. Monitor, by reference to those racial groups, the admission and progress of students and the recruitment and career progress of staff; include in their written statement an indication of their arrangements for publishing that statement and the results of their assessment and monitoring;
  7. Take such steps as are reasonably practicable to publish annually the results of their monitoring under this article.

The Commission for Racial Equality’s Code of Practice to support the Act suggests that as part of the university or college’s Race Equality Policy, issues of curriculum, teaching and learning need to address issues of race equality. Unfortunately, this Code is no longer available online. However, advice and guidance for education and training providers provides some related information.

For more information about the Race Relations (Amendment) Act 2000, visit the Equality Challenge Unit Race Homepage.

To comply with the European Commission Directive which came into force in 2003, the Westminster government introduced the Race Relations Act (Amendment) Regulations 2003. This gives legal protection from racial discrimination and harassment on grounds of race or ethnic or national origins. It does not cover grounds of colour or nationality; these are covered by the Race Relations Act 1976, amended 2000. The EC Directive differs from the UK Race Relations Act in two areas, the definition of indirect discrimination and that of harassment (see below).

3Key concepts related to the legislation

Direct discrimination

This type of discrimination involves the less favourable treatment of a person who has been identified negatively as a member of a “racial” group. An example would be where prospective minority ethnic applicants with appropriate qualifications are not short-leeted for a post on the basis of their race, colour, nationality, ethnic or national origins. Motive is immaterial and there is no scope to justify such treatment even if such action is unconscious.

The Commission for Racial Equality (CRE) provided a clear case of direct discrimination in higher education with the operation of a computer program in the sorting of medical school applications that gave adverse weightings to minority ethnic candidates in such a way as to lower their chances of being admitted.

Indirect discrimination

The Race Relations Act contains two definitions of indirect discrimination, depending on the grounds of discrimination. The definition of indirect discrimination introduced to comply with the EC Race Directive applies when the discrimination is on grounds of race or ethnic or national origins, but not colour or nationality. When the discriminationis on grounds of colour or nationality, the original definition as per the Race Relations Act 1976, amended 2000 applies.

Under the EC Race Directive, indirect discrimination can be said to have occurred when a provision, criterion or practice which, on the face of it, has nothing to do with race or ethnic or national origin, and is applied equally to everyone,

  1. puts or would put people of a certain race or ethnic or national origin at a particular disadvantage when compared with others; and
  2. puts a person of that race or ethnic or national origins at that disadvantage; and
  3. cannot be shown to be a “proportionate means of achieving a legitimate aim”.

For example, a blanket ban on beards in university catering posts might not be a proportionate means of meeting health and safety requirements, if face masks could be used satisfactorily1.

Under the Race Relations Act, indirect discrimination can be said to have occurred when an apparently non-discriminatory requirement or condition which applies equally to everyone

  1. can only be met by a considerably smaller proportion of people from a particular racial group than the proportion not from that group who can meet it; and
  2. cannot be justified on non-racial grounds; and
  3. puts a person from that group at a disadvantage because he or she cannot meet it.

For example, a visible minority ethnic employee applies for the post of equality advisor in her university. She was assessed as having the skills and ability for the job. However, her application was rejected because, unknown to her, the post was open only to permanent staff at higher levels than hers. Monitoring data showed that the organisation had no visible minority ethnic permanent employees at the levels in question. Should there be no justification for the requirement, then such a criterion might amount to indirect discrimination on racial grounds.

Victimisation

This involves less favourable treatment of an individual for a reason connected with a protected act such as making a complaint under the race relations legislation or providing evidence or information in connection with the race relations legislation.

Harassment

The EC 2003 Directive states that a person is engaging in racial harassment if on the grounds of race or ethnic or national origins the person engages in unwanted conduct that has the purpose or effect of

  1. violating the other person’s dignity; or
  2. creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

It should be noted that a single incident, for example a racist joke, on any racial grounds, could be sufficient to cause a person to feel harassed.

Instructions and pressure to discriminate It is unlawful to instruct or put pressure on others to do anything that would constitute an act of discrimination that is unlawful under the Race Relations Act.

Positive action

This is an approach, particularly applicable in the employment field, which is explicitly allowed in the Race Relations Act (1976) as a limited means of addressing the effects of under-representation.

For example, if low representation of minority ethnicc people is identified in a particular area of employment or work status, employers are enabled and encouraged to take action through advertising, training and induction courses to increase minority ethnic participation. When it comes to the filling of a particular post, however, the appointment must be made on merit rather than on the basis of “racial” background. The effects of positive action take much longer to impact on an organisation than do those based on positive discrimination (which is illegal in Britain).

An example of positive action might be a university which has no or low numbers of visible minority ethnic support staff in a geographical area with a high visible minority ethnic population placing within an advertisement a strapline that encourages workers from local minority ethnic communities to apply for vacancies within the university, or printing leaflets in relevant minority languages to encourage them to apply.

In goods and services, if a university had a high number of South Asian staff, it might positively act to provide health screening services in Urdu and Punjabi within its premises to detect heart-related diseases where Asian people have been shown to be at higher risk than other ethnic groups.

Positive discrimination

This term refers to a process which seeks to redress the under-representation of defined “racial” groups in particular occupations, status groups (for example, managers) and courses by skewing competition for scarce opportunities in favour of minority ethnic candidates, providing they possess the required qualifications.

Neither the Race Relations Act nor the Amendment allows positive discrimination or affirmative action — in other words, an employer cannot try to change the balance of the workforce by selecting someone mainly because she or he is from a particular racial group. In the UK, this would be discrimination on racial grounds, and unlawful.

The roots of positive discrimination lie in the Civil Rights Movement, one strand of which drew attention to the degree to which black people and other minorities were excluded from broad areas of employment and promotion in the United States in the 1960s and 1970s. In response to such criticism and to many campaigns by minority ethnic people on these issues a number of states and departments of the Federal Government legislated in favour of positive discrimination. The US laws applied not only to employment but to access to education and training opportunities. In practice the positive bias towards majority/white people is, through affirmative action, temporarily reversed until some form of representative balance is achieved. Whatever the social justice basis of positive discrimination, its effects in some fields have been significant and relatively rapid. However, it has had little impact on those at the lower end of the social scale, and in some states affirmative action measures were repealed in the 1990s.

Genuine occupational requirement and genuine occupational qualification

It is lawful for an employer to discriminate on racial grounds in recruiting people for jobs where being of a particular race or ethnic or national origin is a “genuine occupational requirement” (GOR), or being of a particular colour or nationality is a “genuine occupational qualification” (GOQ). For example, a drama company may specifically require a black person to play the part of Nelson Mandela and advertise for this as a GOQ.

For further definitions, see the terminology section.

  1. This example is taken from the CRE’s new Code of Practice which came into force on 6 April 2006.